People v. Walker

Crim. 21707. Dec. S004350. No. 1988.] [No. PEOPLE,

THE Plaintiff and Respondent, WALKER, JR., PETE and Appellant. MARVIN Counsel Rose, Arnold, W.

Ronald Mark A. R. Arlidge Carleen and Rose & Arnold for Defendant and Appellant.

Jean R. as Amicus Curiae on behalf of Sternberg Defendant and Appellant. General, White, John K. Van Attorney de Kamp, Steve Chief Assistant General, Stein, General, D. Attorney William Attorney Assistant F. Gloria DeHart, Jr., Jorstad, C. K. Dane R. Thompson, Gillette and Kristofer General, Deputy Attorneys for Plaintiff and Respondent.

Opinion EAGLESON, Walker, Jr., J. Defendant Marvin Pete was convicted of first degree murder and other crimes stemming from two incidents separate joined incident, In purposes trial. the first of a during commission shot, liquor robbery, store three were people including 15-year-old boy, Joseph who as Vasquez, died a result. In connection therewith defendant was Code, convicted of the degree first murder (Pen. of Vasquez 187);1 § two counts of assault with intent to Andy commit murder upon Zamora Jerry and (§ robbery Romero and 217); (§ of Romero The 211). jury found that defendant used personally a firearm in the commission of each offense. (§ 12022.5) One special circumstance under the 1978 death penalty law (§ et 190.1 was seq.) found true: that the murder was while committed defendant was engaged in the commission attempted commission of 190.2, robbery. (§ subd. (a)(17)(i).) incident,

In the second also during robbery, of a commission defend- molested, sexually ant woman, Olveda, beat and twice shot a young Rose the head. She survived. In connection therewith defendant was convicted of assault with intent to commit (§217) murder robbery and with (§211) statutory All references are Penal Code unless otherwise indicated. 12022.5), (§ in the commission of each offense use of a firearm

personal Code, 10851.) vehicle. (Veh. theft of Olveda’s § Const., death; (Cal. this is automatic. appeal The fixed the penalty VI, in this case on 11; subd. We filed an initial (b).) opinion art. § § and reversing penalty. affirming judgment guilt December Thereafter, clear that the People when it became granted rehearing we address, argue fair brief and not been afforded a full and opportunity had errors which reversal was upon the merits of one of the penalty phase Project to authorized the California subsequently Appellate We predicated. behalf. We shall address the file an amicus curiae brief on defendant’s by error raised defendant as well various claims of guilt penalty phase hereafter, affirm the judgment curiae. For the reasons set forth we as amicus entirety. its I. Phase Guilt

A. Facts

1. Liquor Store Incident. 6, 1979, defendant, time on a sec- closing August accompanied

Near man, in San Jose. Present were co-owner Shop ond entered Dan’s Bottle Zamora, Andy Jerry young Romero and two Joe employees, Vasquez waistband, from his mentally retarded. Defendant drew a handgun who or he anything that it was a warned Romero not to do holdup, announced shot, then the three into the back room. He ordered would be marched Romero, enraged defendant would become fearing Romero to the safe. open safe, in that he if he found the small amount of cash the petty kept replied a claw by grabbing did not have the combination. Defendant responded you the I’m to hit exclaiming, you going hammer and “If don’t safe open minute” The told defendant to “wait a with the hammer.” second robber for unsuccessfully wallet. After the wallet searching and asked for Romero’s combination, it, defendant, it.” just forget the he told “He doesn’t know Defendant’s returned the wallet to Romero. companion sounded, that a indicating

At that moment the bell on the front door the Defendant ordered to wait on the Vasquez customer had entered store. customer, be shot. any “funny that if he made moves” he would warning shelves to watch who storage Vasquez, Defendant climbed on top the customer and returned to the back room. waited on the to the front of the group Defendant and his next ordered companion $150. the and removed register approximately store. Defendant cash opened said, money. get We out.” Defend- got “Come on. the Let’s companion His any witnesses.” “No. We’re not to leave replied, going ant Romero, back and Zamora into the marched again Vasquez entered, they As observed defendant hand room Romero gunpoint. throughout to his Romero testified that ordeal gun companion. face,” robber, no very boyish “had a look to his exhibited second who behavior; very Very was calm. That’s one of the passive. violent “[h]e way I—I we weren’t to be harmed the we really thought going reasons At no time did second or pointing were.” Romero observe the robber brandishing the Defendant then hit Romero the forehead weapon. across floor, full As fell him with a wine bottle. Romero to the defendant struck over the head with a second full Romero again lay bottle wine. on floor, holding his breath and to be dead. Defendant took Rome- pretending said, back then ro’s wallet from his felt Romero’s back and “We pocket, worry have guy any don’t about this more.” Defendant walked toward Zamora Vasquez and and ordered them to Romero, conscious, on your youths “Get knees.” two still complied. he boys crying testified heard the lives. their Three shots pleading were then fired in rapid directly succession. Neither Romero nor Zamora observed who fired shots. Joe died Vasquez .32 caliber gunshot wound which entered his forehead and back through exited of his head. Andy Zamora also shot in head but survived. Romero was shot abdomen; the bullet ricocheted off his and traveled hip through several major organs, lodging his chest. fled,

As defendant and his Romero heard the customer companion go bell off sound a bottle breaking in the front of the store.2 up, He got blood, boys saw the two lying pools went to the rear door opens which lot, into the car parking saw defendant into a in which the getting already second robber was A adjacent seated. resident of an apartment testified he heard and then saw Black leave gunshots two men the liquor store and get into what to be appeared a rust tan-colored Nova Chevy heavy with oxidation. The witness a picture identified of defendant’s as car body the being style, same color and condition of the robbers’ vehicle. Both Romero and Zamora positively trial; identified defendant at Rome- ro previously witness, had identified at a him Wil- physical lineup. Another Cisco, liam testified that at a in party September late he heard had defendant about his talking robbery. involvement in a Defendant said jury acquitted The Enrique defendant of assault with intent to commit murder of Guerre ro, inadvertently had during robbery who entered the store and been the had struck over head and identify. knocked semi-unconscious an individual he was unable to him way,” in the and so he “took out of

during robbery got “some punk a tucked in at the time he gun Defendant had his waistband game.” made the statement.

2. Assault Rose Olveda. Upon 5, 1979,

Late in the defendant entered a medical evening September Olveda, 20-year-old in San and at Rose who building pointed gun Jose mask, he a ski Olveda working Although wearing positively late. was as her assailant at a and at trial. De- physical lineup identified defendant Olveda to the safe. She that there was no safe. open replied fendant ordered her money He then ordered her into the back room where he demanded $11 car She handed him and the He told her to lie down so he keys. keys. could tie her but he could find with which to tie her. He ordered up, nothing blouse, her to stand her and touched her breasts. He then up, ripped open head, her about the her an estimated began pistol-whipping striking momentarily away times before she was able to break and run for the door. her, her back and her back and beating injuring continued pulled floor, fracturing finally her neck. Olveda fell to the to be uncon- pretending in through scious. Defendant then shot her twice the head—once the left ear, neck; in traveling through jaw bullet her head and her lodging in eye, and once the left the bullet downward and through traveling lodging survived, miraculously her throat. she lost her left Although eye Olveda in her ear as a result of hearing the attack. 3. Investigation. The Subsequent Olveda,

Within five hours after the assault her car upon located police in a less than a block from defendant’s sister’s residence parked carport stayed. where he sometimes

During (“Danny”) “sting” Officer Evan Maclvor was operating in an as a operation undercover San Jose. Maclvor fronted capacity 26, 1979, businessman who stolen On de- purchased property. September fendant contacted Maclvor and sold him a .32 caliber semiautomatic pistol, Maclvor that the to him. After to meet with telling gun belonged arranging gun defendant on Maclvor turned the over to again September .32 crime lab. Joe had died from a caliber police department Vasquez .32 caliber gunshot wound to the head. with the Through comparison spent bullet casings recovered both the store and the office which liquor attacked, a as identify gun Olveda was criminalist was able to positively Romero, used the murder of and the weapon Vasquez shootings Zamora and Olveda. 28, Maclvor told and met on again September

When Maclvor defendant gun the did responded that the did not work. Defendant that gun defendant lot of him in the last six months. money indeed and had made a for work to to the get caught gun also told Maclvor be careful not with Defendant meant, what he defendant because it “had done a murder.” When asked the who had killed someone gun belonged that to a friend replied originally it, serving prison. that the was time in Soledad with and friend now two next October their secretly When the met on Maclvor recorded Maclvor had used weapon eight conversation. Defendant told that the been Salinas, months and that the previously person responsible murder currently it.3 him serving why kept gun time for Maclvor asked he for or nine had eight months. Defendant murderer called replied room, him on the him phone, gun told him the was in his and asked to get rid of it. Defendant he oiled picked claimed it subsequently up gun, down, buried it in backyard. his mother’s did to gun appear not have Maclvor to been buried in oiled or criminalist testified ground; he saw no evidence that had been gun recently buried or down. oiled 4. Defense.

The defense attempted impeach eyewitness through identifications cross-examination of the on witnesses the various details of descrip- their tions of defendant and his companion. Defendant testified half, denying any his own be- on in the murder Joe

complicity or the assaults Vasquez Romero, Zamora, Jerry murders attempted Andy and Rose Olveda. He Maclvor, admitted selling murder weapon Officer but claimed he had it bought from two men in a blue van. Each statement defendant made on the stand his conflicted with last. His statements to Maclvor previous and the at later were police testimony; dates used to his impeach these turn statements in not only conflicted with testimony his trial but with each other as well. The defense also an sought witness on the present expert identification, subject eyewitness but the court ruled the testimony inadmissible.

B. Guilt Phase Issues

1. Severance. contends that trial erred in court his motion denying to sever the counts based the liquor on store incident from the counts from the stemming upon assault disagree. Olveda. We however, investigator County, An Monterey from prosecution testified that no ho micide May had been committed there between October a .32 1979 with caliber gun.

622 in “An accusatory may

Section 954 relevant provides part: pleading in their commis- together two or more different offenses connected charge sion, ... the same class of crimes or or two or more different offenses of triable, . . . that the court in which a case is in the provided, offenses shown, in justice may interests of and for cause its discretion order good .” ... be tried . . . separately that the different offenses are all Robbery, murder and assault with intent to commit murder “[Sjection joinder offenses of the same class. 954 of all assaultive permits ” all them ‘of the same class.’ against person, being crimes of considered 129, v. 116 135 (Coleman (1981) Cal.Rptr. Court Superior Cal.App.3d [172 cert, 846, den., 451 86], 2325]; U.S. 988 L.Ed.2d S.Ct. see also [68 441, 700, Williams v. Court 36 Cal.3d Superior (1984) Cal.Rptr. [204 joined 683 P.2d Hence offenses were in the first 699].) properly these instance. statutory joinder clearly

“Since the were met in requirements case, only showing this can error on clear predicate preju [defendant] Court, dice.” 36 Cal.3d at v. (Williams Superior supra, p.447; People 913, (1986) Smallwood 42 Cal.3d 722 P.2d 197].) Williams, As we in in explained analysis the first is to determine step whether the evidence in each case in would be admissible the other. Such cross-admissibility ordinarily any would inference of dispel prejudice. that, trials,

We conclude had there been evidence to the separate relating in liquor store incident would have been admissible the trial for the assault Olveda, robbery and and vice versa. Other-crimes evidence is admissible identity the defendant’s as the prove alleged another perpetrator similarity offense on the basis of “when the marks common to the charged offenses, combination, considered or in uncharged singly logically oper- ate to set the charged uncharged offenses from other crimes of the apart and, variety same general doing, suggest so tend to that the perpetrator offenses was the uncharged perpetrator charged (People offenses.” Haston 69 Cal.2d Here, both incidents were committed in San Jose one month both apart; assaults; were armed robberies and in leading unprovoked deadly both shortly instances defendant entered business after 10 de- premises p.m., room, manded that be a safe marched his victims to a back opened, Then, his attack began beating using with vicious to the victim’s head. instance, same gun each he shot the victim the head while he or she lying on the floor. We are not defendant’s persuaded argument dissimilarities—i.e., several that the store incident involved two un- liquor robbers, robbery masked while the assault and of Rose Olveda was commit- enough negate significant masked assailant—were single, ted or modus design operand!. inference of a common event, of each incident In even were we to conclude that evidence any in trial of stem separate charges not have been cross-admissible would other, its not follow that the trial court abused from the it would ming “ discretion in refus judge’s discretion in severance. denying ‘[T]he in evidence of unc admitting severance is broader than his discretion ing weigh . . .’ on a motion to sever is based on a harged ruling oifenses. [A] effect, in weigh value as but ing probative against prejudicial joinder the beneficial results from are added to the ing process probative- value side. This the defendant to make an even stronger showing requires effect than be whether to admit determining would prejudicial required Court, (Coleman v. su other-crimes evidence a severed trial.” Superior 138-139, 116 at v. Matson 13 pra, Cal.App.3d pp. quoting People Cal.3d accord Williams v. 752]; Superi Court, 36 Cal.3d at supra, p. 451.)

Defendant’s is insufficient to an showing prejudice establish trial, abuse of Although discretion. this was none of the prQ-Williams Williams, 453-454, remaining factors detailed in at supra, Cal.3d pages militated against joinder. This is not a case as such Coleman Superior Court, supra, where there was Cal.App.3d danger strong evidence of a lesser but crime inflammatory might be used to bolster a weak Williams, case on a murder prosecution charge. Nor does this case resemble where at least one relatively two weak were possibly charges joined other, each support raising the that the danger aggregate would evidence to convict on both charges. (36 453.) Cal.3d Here the p. prose cution presented overwhelming evidence of defendant’s as to both guilt incidents. The victims all him. surviving positively identified Defendant’s incident, had gun been used each incident. In the store defendant’s liquor vehicle, car was identified as the getaway shortly robbery while after the Olveda, and assault of her stolen car was located abandoned less than a block from stayed. defendant’s sister’s where he De apartment sometimes statements, fendant’s own particularly those made when he sold the gun Maclvor, undercover Officer him in each Finally, incriminated incident. this was not a case in joinder which itself rendered defendant death-eligible Williams, (see supra, 454); Cal.3d at murder carried its p. Vasquez felony-murder own special circumstance.4 4Moreover, murder, penalty Vasquez felony at the trial for the evidence of defendant’s rob

bery attempted murder aggravating of Olveda was admissible to establish an circum stance. 2. Jury Selection Issues.

a. Sequestration.

Defendant contends that the voir dire of each juror prospective “death regarding qualification” should have been done individually and in In sequestration. Hovey Court Superior (1980) 28 Cal.3d 1 128, 616 P.2d 1301], we held that in future capital cases this procedure must be followed in order to minimize the potentially prejudicial effects of (id., voir dire. The open Hovey rule of only was prospective at p. 80) therefore does not to trial apply this which commenced to the prior filing 436, that case. v. Holt (People (1984) 547, 37 Cal.3d 449 Cal.Rptr. 690 [208 1207]; 302, P.2d v. People 196, Turner 37 (1984) Cal.3d 316 Cal.Rptr. [208 690 669].) P.2d

b. Challenges Cause.

Two jurors prospective were excused for cause under v. Witherspoon 776, Illinois 391 (1968) U.S. 510 L.Ed.2d 88 S.Ct. [20 1770].

maintains that the court erred in one of excusing these prospective jurors: Ms. Holt.

The United States Court Supreme recently modified the Witherspoon standard in Wainwright 841, v. Witt (1985) 469 U.S. 412 105 L.Ed.2d [83 844], S.Ct. and we adopted that modification in v. Ghent 43 People (1987) 739, 82, Cal.3d 767-769 The new standard is [239 1250]. juror’s whether a views would “prevent or substantially impair perfor- mance of his duties juror as a in accordance with his instructions and his Witt, oath.” (Wainwright v. supra, 469 U.S. at 424 p. L.Ed.2d at pp. [83 851-852].) Prospective juror Holt unequivocally inability announced her vote for the death penalty, “regardless what the facts might be this Our review of her voir dire supports court’s case[.]” determination that she held views regarding death penalty that would substantially impair the performance of her duties as a juror. She was excused. properly c. Peremptory Challenges.

Defendant contends that the prosecutor’s exercise peremptory challenges against who, death penalty skeptics—i.e., jurors al prospective Illinois, though not excusable for cause under v. Witherspoon 391 supra, U.S. nevertheless expressed reservations about the death penalty—vio lated v. People Wheeler (1978) Cal.3d 258 P.2d We have repeatedly rejected this . argument; there is “no . . 748]. constitu tional infirmity in permitting peremptory challenges by both sides on the Turner, (People penalty.” on the death juror attitudes specific

basis of at 315.) 37 Cal.3d supra, p. as error trial court’s denial assigns curiae rehearing,

On amicus Wheeler, pursuant supra, motion for a mistrial of defendant’s may not challenges In that peremptory Wheeler we held Cal.3d 258. jurors solely presumed group remove on basis be used to prospective L.Ed.2d Kentucky Batson v. 476 U.S. 79 bias. (Accord, certain jurors S.Ct. We defined bias as the group presumption group of an distin merely they because are members identifiable are biased racial, 276.) Cal.3d grounds. (22 p. ethnic similar guished religious, on Wheeler, his is improperly a who believes party opponent Under raise a discriminatory for a must challenges purpose exercising peremptory facie case of such discrimination. Once timely challenge make prima shown, party has burden to the other facie case been shifts prima other, valid bases for come forward with an that demonstrates explanation on trial reasons relevant to the case challenges—i.e., particular (People Wheeler, as Su 280-282), v. 22 the United States supra, pp. Cal.3d it, has “a neutral to the case put particular Court related preme explanation U.S. at (Batson Kentucky, to be tried.” v. L.Ed.2d at supra, p. p. 88].) It to “a and duty then becomes the trial court make sincere light to of the prosecution’s explanation reasoned evaluate attempt known, of the then his of trial knowledge techniques, circumstances case as and observations manner in has examined prosecutor his of the which of the and has exercised for cause or challenges peremptori- members venire . . ly. .” Hall Cal.3d 167-168 (People “rely We good judgment P.2d have that we will on the explained to reasons such peremptories trial courts bona fide for distinguish from excuses contrived to avoid acts of belatedly admitting group sham Wheeler, discrimination.” 282.) 22 Cal.3d at supra, p. (People case, In defendant had present pre the court concluded that facie The in turn a number reasons prosecutor gave sented a case. prima He jurors. for each of the three Black recalled that challenging prospective Michael had come to in metal-studded prospective juror George court had that been motorcycle garb, leather and related he had repeatedly motorcycle harassed his stopped by police riding San Jose officers while syndrome.” he fit what he called the black man Once “average because head; the officer to George speeding, gun when held his stopped force, this was an George display complaint felt excessive filed a with division, San internal affairs unsatisfied its police Jose seemed with volunteered, resolution. also recalled that had with- prosecutor George asked, comfortable out he at all being “that was not with the fact it was a death situation.” penalty juror Dorothy

Prospective King strong had expressed scruples against the death She penalty. displayed general also bias. She antiprosecution related that the San Jose had police “harassed” her husband stopping him without sufficient cause. She had served on a in a jury homicide prior case which resulted in the defendant’s She acquittal. related that she dis- liked on a a murder case. sitting Brown,

As juror, Dorothy for the third Black prospective prosecutor recalled that she was able her barely amusement when suppress apparent asked about her credibility views on the officers. She had police founded a media,” group “counterbalance the of Black in the popular image people incredulity and showed disdain when asked prosecutor follow-up about questions functions. She believed the San Jose Police group’s Department every had followed her husband home for a night protracted of time. She period stated she could not herself imagine siding with the side of the prosecutor’s case.

We are satisfied that critically the trial court fulfilled its obligation evaluate the The record the court’s prosecutor’s explanations. supports conclusion that the exercised his prosecutor properly peremptory challenges on grounds of individual bias.5

d. Misleading Voir Dire.

Several of the prosecutor’s questions during voir dire im properly that the plied jurors should not let their at the be judgment guilt phase swayed by undue youthful or for the defendant pity sympathy family or his members who be in the might present courtroom. Some of the questions, however, have may that these considerations would also be implied improp er at the penalty Defendant the were reversible phase. argues questions misconduct, but the lack of an objection any waived such claim on appeal. 1, v. Green 27 (People (1980) Cal.3d 609 Cal.Rptr. P.2d Moreover, any such error was later by cured instructions that counsel’s law, were questions not themselves evidence or definitive statements of the (1985) Amicus curiae contends further that under v. Trevino 39 Cal. 3d 667 [217 719], accepting prosecutor’s explanations the trial court erred in the attire, they jurors’ to sneers, prospective expressions the extent took into account the facial and laughter, snickering supports audible and the like. We conclude that the record the finding specific prospective juror separate any court’s of bias each apart as to and from such factors. and for the sympathy that “pity instruction phase

and the special penalty be considerations.” proper defendant would the prosecutor’s questions also as misconduct assigns knew what life they impris whether jurors about to several

put prospective reject We defend “really meant.” the of possibility parole onment without Ramos error (People reversible ant’s claim that the constituted questions 430]); “Briggs P.2d no Ramos 37 Cal.3d in was given the commutation power Governor’s concerning Instruction” case, of affirmatively guber informed such jury otherwise this nor was improper speculation, invited questions natorial To extent powers. trial, They stage arose at the earliest any clearly error harmless. any truth of insinua instructed not to assume the was thereafter suggested by attorneys’ questions. tions Testimony.

3. Witness Expert Exclusion of Dr. Ha Craig counsel called a professor psychology, Defense may ney, give testimony as an on the factors that affect witness expert Dr. nu reliability Haney identify eyewitness planned identification. which, merous in this case in his increased the opinion, factors expert likelihood of the He had to ex hoped of the misidentification defendant. on that persons various studies which have concluded pound experimental well, may that under stress do not details mistaken identifications perceive influences, result from that victims a crime suggestion unconscious tend to than on the gun gun perpetrator, which is used focus on rather of another race. many identify and that find it difficult to people persons testimony, after an objected to the introduction of this prosecution it Although camera the court ruled that would be excluded. hearing in the may part court factors have some agreed listed played case, eyewitness it concluded that the identification this nevertheless testimony subject was common proposed knowledge matter jury. would the basic function of the Defendant now contends usurp tend to excluding testimony. the court its in the expert abused discretion The which that Appeal trial court relied on two Court of decisions held testimony trial in on excluding expert did not abuse his discretion judge 380, eyewitness v. Guzman (People (1975) Cal.App.3d identification. 69]; 385-386 v. Johnson 6-7 Cal.Rptr. People (1974) Cal.App.3d [121 however, court, The did not have benefit of our Cal.3d 351 later-filed in v. McDonald opinion we P.2d 46 A.L.R.4th wherein criticized the 1011], decisions, in case reasoning and made it clear that an appropriate of those testimony exclusion of would constitute not expert only an abuse of discretion, but reversible error. (Id., 376.) at p.

In McDonald we held that “in the usual case the court appellate will continue to defer to the trial court’s in discretion this matter.” (Id., 377.) We also characterized the in p. unusual case which the exclusion of may such evidence be an eyewit abuse of discretion: it is one in “an which ness identification of the defendant a key is element of the case prosecution’s but is substantially by not corroborated evidence it giving independent reliability, and the defendant offers qualified testimony on expert specific psychological by factors shown record could have affected the accuracy of the identification likely but are not to be fully known to or by jury.” understood (Ibid.) is case one which the trial court present had discretion to

admit or exclude the expert testimony. Haney Dr. Although offered to identify defendant, factors that might suggest the witnesses misidentified the ample circumstantial evidence linked defendant to the crimes and gave earlier, identifications an source of independent reliability. As we noted defendant admitted possession gun incidents; that was used in both his car was identified as the possible store; vehicle getaway from the liquor Olveda’s stolen vehicle was found parked less than a block from where lived; defendant’s sister and defendant made numerous state incriminating court, ments both to friends and police. Although trial under these circumstances, had discretion to admit Dr. Haney’s testimony, we find no discretion, error, abuse of clearly no prejudicial its decision to ex . clude that evidence 4. Statements to Undercover Maclvor. Officer

Defendant contends that his statements made to Officer Maclvor were erroneously admitted at trial unlawfully because he was into “entrapped” making them. He also claims that his Fifth Amendment rights were violated Officer Maclvor’s “interrogation.” noted,

As previously during 1979 Officer Maclvor was operating in an “sting” operation undercover capacity San Jose in which he posed as a businessman who stolen purchased Three weeks after the property. Olveda assault robbery, defendant sold Maclvor the which handgun was subsequently determined to be the in the weapon used murder of Romero, Vasquez and the shootings Zamora and Olveda. there- Shortly after defendant; Maclvor twice met again with on the second occasion undercover officer wore a concealed wire and their conversation was tape- recorded. During these defendant meetings made various state- inculpatory

629 in his for possession him and had been to e.g., gun belonged ments: that it” that money during he “made a lot with months; that had the last six defendant was arrested Although and had “done a murder.” that it period; other, on the same property unrelated stolen suspicion possession on Maclvor, briefly he only detained he sold to Officer was day weapon meetings custody subsequent in during was not released. Defendant crimes. Maclvor, arrested with these yet charged had not been with Entrap is merit. claim without plainly Defendant’s “entrapment” 23 Cal.3d (1979) v. Barraza charged (People is a to a crime. ment defense 459, 675, P.2d not a crime to make 947].) 688 It is Cal.Rptr. 591 [153 officer, with charged to an nor was defendant statements incriminating having done so. v. 436 (1966) Miranda Arizona 384 U.S.

Defendant’s reliance on 694, 1602, authority 974], L.Ed.2d 86 S.Ct. 10 A.L.R.3d as for suppres [16 his The misplaced. require sion of statements to Officer Maclvor is likewise v. only custody. (Rhode ments of in Island suspect Miranda when is apply 307, 291, 297, 100 Innis 446 U.S. 300 L.Ed.2d S.Ct. (1980) [64 As custody not in his with Officer Maclvor. during meetings 752, v. 296], in Leach 419 541 P.2d (1975) Cal.Rptr. Cal.3d [124 reject we defendant’s “rather contention the undercover preposterous should, to himself into the confidences of agent prior insinuating [defend ant], normally have delivered to the Miranda as warnings required [him] (Id., 442.) arrest.” at p. concomitant of Physical

5. Restraints.

On the first it error to rehearing, defendant for time contends was leg allow the to see him and a restrained handcuffs brace. record, used, however, unclear types is as to what of restraints were when used, they jury, were since defendant they apparent or whether were reason, objected never below. For the claim has been waived on appeal. this 488, 64, Taylor (1982) Cal.3d 495-496 (People Duran object jail clothing]; People tried being 115] [failure 90 A.L.R.3d Cal.3d P.2d 1] and ankle restraints].) [wrist

6. Misconduct. Prosecutorial engaged

Defendant contends that the misconduct prosecutor claims In defendant requiring judgment guilt. particular, reversal the record reflects the made some facial of disbelief prosecutor expressions cause, made an juror when trial court dismissed a prospective leanings unsolicited comment about the of this court philosophical during juror. early of another Both matters occurred in the questioning prospective minor, harmless jury selection and were of nature. The failure to process Green, v. object any waived claim of misconduct on appeal. (People supra, 27.) Cal. 3d at p. grounds Defense counsel moved for mistrial on of misconduct the the when showed witness who discovered the victims prosecutor a high yearbook store incident school of murder victim liquor photograph briefly Joe The witness reacted with some emotion Vasquez. upon viewing charged and counsel that its use was calculated to arouse photograph, record, however, The jury’s sympathy. findings the trial court’s supports that and conclusion use of the for identification was photograph purposes not misconduct. The that the prosecutor explained which sim photograph, uniform, only in a baseball one available to ply depicted Vasquez was him; that its identification the witness was crucial to demonstrate that distinguish witness could from assault victim Guerre Vasquez Enrique ultimately ro (defendant was of assault with intent to murder acquitted and that he had Guerrero); (the prosecutor) knowledge no or reason to that the witness suspect personally knew or would react emotional Vasquez ly seeing trial court had discretion to admit the upon photograph. 86, evidence 45 Cal.3d 114-115 (People Thompson (1988) Cal.Rptr. [246 245, 753 P.2d nor has misconduct or been 37]); prejudice demonstrated. Validity Felony-murder 7. Rule. urges felony-murder that California should abandon the

rule. We have rejected argument repeatedly upheld continuing rule, viability again. (1983) and do so Dillon 34 Cal.3d 441 (People 390, 697].) 668 P.2d Cal.Rptr. [194

8. Instructions on Assault With Intent to Commit Murder. erroneously

Defendant claims that the instructed on jury as intent may sault with to commit murder because the instructions as a whole jury have led the to believe it could determine without guilt finding express (See malice. v. Murtishaw 29 Cal.3d 763-765 People (1981) 446]; v. Martinez Cal.App.3d The contention meritless. instructions on first and second Following is malice, degree murder and on was instructed express implied . defendant is also . . . . . assault with intent to charged with “[t]he murder, commit a violation of 217 of the Penal That section provides Code.

631 intent the to commit specific another with every who assaults person that murder, to In order to commit is of the crime of assault murder guilty ffl] murder, of the to each of the crime of assault commit the commission prove assaulted, One, was a be that person must following proved: elements ffl] Two, intent murder made with the specific that the assault was and [If] requires murder express Assault with intent to commit [j[] such person. intent to merely and not the specific and a intent to murder malice specific intend, However, only be murder defendant must need kill. the which Thus, jury spe- degree.” (Italics added.) murder of the second it malice. cifically that must find express instructed may have inferred from reference jurors that argues or malice implied murder that of either degree finding express second We commit murder. would a conviction of assault with intent to support able to understand that disagree. jury clearly express The should have been malice, instruction, be for as directed in the must found order defendant’s murder, conduct to intent to and that the constitute assault with commit of the only reference to second murder to a determination degree pertained murder—i.e., degree of the of the that the need not determine fixing jury murder, malice, whether the have been fixed at express intended with would first of a or degree (being during robbery) commission premeditated second degree. Liability. Instructions on Accomplice

9. On and amicus that the trial rehearing, argue defendant curiae liability court’s failure to instruct on regard accomplice intent with store assaults reversal of We liquor requires disagree. those convictions.6 abetting standard CALJIC instructions found deficient aiding 547, 60, v. 35 Beeman Cal.3d 560 674 P.2d People (1984) Cal.Rptr. [199 1318], were here. Former CALJIC Nos. 3.00 and 3.01 were given erroneous “because not advise an aider they did that conviction as and abettor only not that the defendant have of the criminal required knowledge pur offense, but also the defendant that pose share perpetrator commit, or intend to or facilitate the purpose encourage, commission 1, 592, Croy crime.” v. 41 Cal.3d 11-12 (1985) Cal.Rptr. (People [221 210, 392]; P.2d v. Caldwell 36 Cal.3d 223-224 (1984) People [203 547, Beeman, 433, 681 274]; 560.) P.2d 35 Cal.3d People supra, intent to victim Rose This ar Defendant alone robbed assaulted with murder Olveda. solely gument assaulting Jerry is directed to the convictions of intent to murder Romero with Andy robbery, during liquor perpetrated an Zamora store which defendant with accomplice. recently

We have held that from Beeman prejudice error is assessed under the beyond “harmless Chapman reasonable doubt” standard of 18, 705, review. (Chapman 386 U.S. (1966) L.Ed.2d California 710-711, 87 S.Ct. 1065]; A.L.R.3d v. Dyer 45 Cal.3d 60-64 1].) Under these facts the Beeman clearly error was beyond harmless a reasonable doubt.

It is that defendant was undisputed armed with the handgun initiat- upon ing robbery of the store. After liquor defendant personally removed money stated, from the cash register his accomplice “Come on. We got money. Let’s out.” get “No. We’re replied, going not to leave any witnesses.” (Italics added.) Defendant marched the victims back into the rear of the store at He gunpoint. handed the to his gun partner, then twice struck Romero across the head with two full bottles of wine. When Romero dead, to be pretended defendant removed Romero’s wallet from his back said, pocket, felt his back and “We don’t have worry to about this guy any more.” (Italics added.)

Neither of the victims surviving directly observed defendant regain pos- session of the gun However, or fire the enusing volley of shots. Romero testified that defendant’s who “had a companion, very boyish look to his face,” remained passive throughout the incident and at no time exhibited any threatening violent behavior. Romero observed walk over defendant to Zamora and Vasquez and order boys to their knees. As the victims pleaded for their lives three shots were fired succession; off rapid Vasquez and Zamora were each shot through the the head. The execution- front of style clearly shooting evinces an intent kill. The nature and location of wounds, together with Romero’s testimony, an strongly infer- supports ence that defendant momentarily handed the gun to his so he companion bottles, could hit Romero over the head with the wine then took his gun back, stood in front of his victims and fired the shots.

Defendant used the same several handgun weeks later rob and twice shoot victim head; Rose Olveda in the the jury concluded from such evi- dence that he had assaulted her with intent to commit murder. Subsequent to the commission of these offenses defendant remained in possession of the handgun, admitted of it when he ownership sold it to undercover Officer Maclvor, and told the officer it “had done a murder.” The jury found that defendant had personally used the gun connection with the murder Olveda, Vasquez, robbery and the assaults with intent to commit Romero, murder upon Zamora and Olveda. short,

In the undisputed evidence establishes that overwhelmingly de- fendant personally shot all of his victims and intended to murder each of

them, enhance- gun-use in one The verdicts and personal case. succeeding found; so no under count establish that ments found true each contrary presented. evidence whatsoever was Circumstance. Robbery 10. Felony-murder Special robbery cir felony-murder special that the Defendant contends instruct intent to the court failed to on cumstance must be set aside because 79, 672 In 35 Cal.3d 131 kill. Carlos Court Superior felony-murder an P.2d held that intent to kill is element 862], we law, whether of the 1978 death penalty applied circumstance special (Id., 153-154.) or to actual killers. accomplices pp.

We v. Anderson 43 Cal.3d (1987) have since overruled Carlos that, 1306], wherein we held with respect [240 killer, to the the court need not instruct on intent to kill in connec- actual re- tion Such an instruction is felony-murder with circumstances. special is could find that the only jury where there evidence from which the quired the killer. 1138- (Id., defendant was an rather than actual at accomplice pp. 1139.) correctly that the court to that argues failing erred instruct kill finding felony-murder of intent to for a circum- required special is

stance as to an is not the actual killer. Defendant handed accomplice who gun to his Romero over the the accomplice hitting before head with wine; bottles directly of thereafter neither Romero nor Zamora observed defendant shoot that Vasquez. Notwithstanding overwhelming evidence liability defendant was the because instructions were gunman, accomplice here, that, theory under given defendant entitled to an instruction such felony-murder would liability, require proof circumstance special his kill. intent to error, however,

The was harmless for all the reasons which required same rejection our defendant’s Beeman error. prejudicial (Ante, pp. claim 631-632.) Absolutely no did presented suggesting evidence was defendant robbery. not to kill all to the triggerman’s share the the witnesses purpose Moreover, necessarily that the found de- guilty jury verdicts reflect fendant’s intent to kill Three were Rome- Vasquez. persons shot—Vasquez, Only charged ro and died. with two Zamora. Defendant was Vasquez shootings counts of assault with to commit murder for the of Romero intent The mal- jury requires Zamora. was instructed this crime express malice, context, an (Ante, necessarily ice. in this includes 631.) Express at p. Murtishaw, The 764-765.) intent to kill. Cal.3d (See People supra, 29 jury verdicts defendant on both counts thus determined that finding guilty he intended kill The manifestly Romero Zamora. evidence shows a intent to all three single shootings; as victims store it is incon- liquor ceivable the only would find that defendant intended to kill the victims survived, who but not the one who died. virtually

It is anyone to conclude on this record that other impossible event, than any defendant was the actual killer. In the record establishes Hence, beyond doubt that defendant acted intent kill in with this case. Enmund v. Florida finding required (1982) U.S. 782 L.Ed.2d 1140, 102 3368], S.Ct. is satisfied. U.S. (Cabana Bullock L.Ed.2d 106 S.Ct. 689].) 11. Questions Juror and Instructions on the Firearm-use Enhancement.

Defendant contends that the court juror inadequately responded questions concerning allegations of firearm use in connection personal deliberations, with the liquor store shootings. During jury through its whether, foreman asked in order to find the firearm-use enhance personal true, ment it had to be established that defendant personally pulled trigger, whether his at the crime scene presence would suffice. court by responded rereading applicable of CALJIC No. 17.19 paragraphs (1980 rev.), the relevant a 12022.5 defining concepts underlying section gun- use enhancement. Amicus curiae concedes that the cor enhancement was manner, rectly thusly: defined “to a firearm in a display menacing intention it, ally to fire intentionally to strike or hit a human with it.” It is being however, argued, jurors may that one or more have remained confused about when enhancements could be deemed under completed these facts, since defendant displayed the when he confronted and gun initially robbed the victims—and at some later at all point weapon fired three victims. The court by to a second CAL- responded inquiry7 rereading JIC No. 17.19 and No. 3.31 (concurrence intent). of act and specific

Defendant and amicus curiae contend the court should have instructed the jury that the under gun-use allegation only the murder count could be murder, found true if defendant used the to commit the gun and that his inquired regard: 7The foreman in this “In the definition of time commission of offense case, really appears taking concurrently. this it place there were two offenses There was a taking place robbery, any murder relating the same time as a Are there instructions to [fl] Well, might begin? by when the . . . preface saying murder let me it I don’t think a it’s [H] major problem. looking beginning But we’re for some on the a crime. And clarification there occurring guess question are two crimes that are at the I . . same time. is: . Is the begun only crime defined to have when the intent of that crime becomes clear? Or is it when clearly begins?" the act felony a “separate” the commission gun or use of display earlier if he had a finding—even to such would be insufficient (robbery) support authority no kill at Defendant cites intent to that time. already formed the self-evident, the found jury having far from and it is proposition for this robbery. Sec- felony during murdered commission that defendant firearms are to use distinguish willing 12022.5 is those who tion intended not, increase the from are and to felonies those who committing while 232, 240-243 18 Cal.3d (1976) for the Walker (People former. penalty 7 Cal.3d 306]; v. Chambers in the P.2d clearly belongs category. first event, further instruc- any clarifying

In need not determine whether we order, no Defend- prejudice. were in on these there could be tions facts witnesses, herd his to leave used the gun ant clear desire no expressed him, room, in an kill victims into back assaulted Romero attempt Zamora to Even for sake of Vasquez assuming ordered their knees. shots, find de- that fired the we do not argument companion defendant’s gun fendant’s own use so from the actual separate shootings prejudice court’s more fully could be inferred from the failure to instruct. Penalty II. Phase

A. Facts stipulated guilt and defense that the evidence from the prosecution could be phase. Only considered in the few

phase penalty additional witnesses testified.

Officer testified for the about a conversation he heard prosecution Nichols and his Lawrence through monitoring electronic between defendant cousin 26, at the police September Martin station on 1979. the conversa- During tion, defendant Martin that he have to from “Dan- get gun told would the ny” and that have be “offed.”8 (Officer Maclvor), “Danny” would at a preliminary hearing

Officer Maclvor testified that the conclusion of 30, 1979, himby October and the district deputy on defendant walked stated, attorney the and hearing, prosecutor the turned toward conducting 8 property Defendant Martin sold to Officer earlier on this testified he and stolen Maclvor handgun date. This was the in which sold the used in the instant same transaction defendant sale, Shortly stopped to Officer after and Martin were and offenses Maclvor. the defendant suspicion burglary. While in their were secret police detained on the station conversations monitored; ly alleged gun “Danny” get at that time defendant’s threats to back from kill him were overheard. 636 D.A.” The record further suggests hell I’ll me a getting cop. get

“The with “Danny” 26 may September have been some mention of that there a bail motion made at the conclusion threat connection with “D.A.” threat. thereby defendant’s hearing, prompting preliminary perhaps by, de- testified that when defendant walked attorney district deputy attorney him a comment. All the district could fendant and made glared “D.A.” make out was and friends as witnesses. family

The defense several members presented defendant, old, years had grown Defendant’s mother testified that now family in a with 7 brothers and sisters. worked up poor had family. Defendant’s sisters testified that defendant support the helped Each wished financially emotionally them on occasions. helped past yard had done some secretary him to live. A church testified that defendant he for her in A friend of the defendant testified that some- work the past. drove her Defendant’s testified that he had girlfriend helped times to work. innocent, him her he was and that she loved emotionally, thought that she him testified and denied making and did not want to die. Defendant innocent attorney. threats to the officer and the district He claimed he was to live. crimes and wished Penalty B. Phase Issues Penalty

1. the 1978 Death Law. Constitutionality of death penalty Defendant and amicus curiae contend that Consti law violates the and Fourteenth Amendments to federal Eighth jury’s tution because it fails to for the exercise provide adequate guidance discretion, to state in its reasons sentencing jury writing its or to require the due process death. He further that the law violates choosing argues penalty clause to find death failing require appropriate We have identical constitu beyond repeatedly rejected reasonable doubt. v. Allen (1986) tional attacks on each of these asserted grounds. (See People 849, Rodriguez 115];People 42 Cal.3d P.2d Cal.3d 777-779 2. Evidence Death Threats. of the

Defendant contends that evidence grounds: (1) “D.A.” and death threats was inadmissible on three “Danny” notice of its intent to introduce such the failed to prosecution give adequate duty in had a to a record (2) preserve tape evidence aggravation; police “Danny” made the of the monitored conversation in which defendant ing statute—a threat; threat constituted a violation of a (3) penal neither 190.3, v. factor admissibility (b). (See People under section prerequisite 127, 29, 711 P.2d 423].) (1985) Cal.Rptr. Cal.3d Phillips merit, to the only respect claim has and then with Only the last Moreover, admission of evidence of “Danny” threat. the erroneous threat “Danny” nonprejudicial. was

a. Notice. contends that the failed to him prosecutor give proper in aggravation notice of his intent to offer evidence of death threats the penalty phase.

Section in relevant for evidence in part: proof 190.3 provides “Except the offense a to the death subject circumstances which defendant special be penalty, may by aggravation no evidence presented prosecution unless notice of the evidence to be been given introduced has to defend court, ant a within reasonable of time as determined period prior trial.” The purpose statutory notice is to advise the accused of the evidence him so that he a against may have reasonable opportunity a defense for the trial. prepare penalty phase (See Miranda People 44 Cal.3d (1987) 1127].) We are satisfied that there was substantial with sec compliance tion 190.3. The record discloses that the told defense counsel prosecutor even before the case arrived in court that defendant had threatened superior addition, district deputy attorney and a officer. In a written notice police of the intention to introduce such evidence in filed a full aggravation was week before commencement of the The trial penalty phase. judge conducted in chambers hearing on the evidence to be admitted at the penalty phase. personally He recalled that from the time he was the case the assigned matter of the threats had been prior discussed connection with court Moreover, security room concerns. defendant cannot be heard to complain 30, 1979, that the notice of the October courtroom threat against deputy attorney district lacking specificity; record reflects defense coun sel was defendant at the representing preliminary hearing and was himself in the present Finally, courtroom when defendant uttered the threat. record reveals fully counsel was aware of his to seek a continuance to right investigate respond any evidence of which he had not been afforded notice. adequate (See Howard 44 Cal.3d 419-425 [243 842, 749 A P.2d continuance was never sought. The trial court was satisfied that defense counsel had been afforded ade- notice of the quate intent to prosecutor’s introduce evidence of the threats. We see no reason to reach a contrary conclusion. Duty

b. to Preserve the Evidence. Maclvor the to undercover Officer

Shortly selling gun after his cousin at the station on (“Danny”), defendant and were detained police two in a Officer Nichols testified the were burglary. placed suspicion secretly their monitored. Defendant was overheard room and conversation that Danny, his cousin he have to the back from get gun to tell would for Danny should Nichols “off” was street term be “offed.” testified “kill.” attorney the start of the first time phase,

At the the district penalty had been as police learned that conversation at station tape-recorded as Nichols that the threats audible on well monitored. Officer testified were had very but its was because defendant and his cousin tape, poor quality of the to homicide detectives tape been A was forwarded whispering. copy The homi- electronically whose to enhance it unsuccessful. attempts proved that the of no cide detectives thereafter informed Officer Nichols “was tape ultimately original value to them.” He for five or six months and kept it, effort it for reused no to trial. Neither making special preserve were made available to the defense or original tape copy nor ever trial. during prosecution that under v. Hitch 12 Cal.3d (1974) contends

652-653 the officers’ destruction 361], negligent [117 “Danny” of the should have admission of evidence of the tape precluded at the United States Court has penalty Supreme threats phase. recently duty-to-preserve-evidence formulated its own test in California 413, 104 Trombetta 467 U.S. 479 L.Ed.2d S.Ct. Under 2528]. Trombetta, only to which “both duty to extends evidence preserve an value that before the evidence was was possesses] exculpatory apparent destroyed, and a nature that the defendant would be unable of such [is] reasonably (467 obtain evidence other available means.” comparable Here it neither U.S. at L.Ed.2d at p. p. appears met; of the test was made no that showing Trombetta defendant prong value, he show any nor did tape recording possessed apparent exculpatory Nichols, directly his Officer moni why opportunity cross-examine who conversation, any In tored the his taped inadequate protect rights.9 event, shown, by our effectively as next this claim is mooted conclusion for a fundamental “Danny” evidence of the threats was inadmissible more reason. 9Indeed, upon argued tape defense to the cast doubt counsel that destruction evidence, “Danny” against proved finding that the been threat and militated threats had

beyond a reasonable doubt.

639 the Evidence. Admissibility c. case, held that after trial in this this court years

Five defendant’s crimi consideration of contemplates as section 190.3 “[i]nsofar . . . be limited to such evidence ‘must history (see (b), (c)), nal [factors] crime, actual specifically, the commission of an conduct that demonstrates 29, .’ 41 Cal.3d (1985) a . . v. (People Phillips the violation of statute. penal 776-778 72; [762,] v. 38 Cal.3d Boyd, Boyd (1985)] pp. see also [People 1, 45 Cal.3d (1988) v. Belmontes 782].)” (People Cal.Rptr. [215 126, 744, P.2d 310].) 808 755 Cal.Rptr. [248 threat,

Defendant and amicus curiae contend that the courtroom D.A.,” “the hell with a I’ll me a was not a crime violation getting cop, get of a statute. asserts it was a violation of sections 69 or penal Respondent an executive or officer with intent to deter (threatening public performance his that evidence threat would duties). We conclude of the courtroom a of a violation section 69. defendant voiced the support finding Although voice, in a he attorney threat low he turned to face the district when deputy it. just communicated had a deputy completed conducting preliminary answer, hearing which defendant was held to had his argued against bail, release on and was able to hear at least a of the threat. Given portion faced, reasonably murder and assault which defendant it could charges be ability carry that he had the out the threat. The perceived apparent evidence thus an inference that defendant or supports intended to thwart deter further prosecution by of his case district threatening deputy attorney, and each element requisite of violation of section 69 was shown on these facts. v. 40-44 (See People Hopkins (1983) 149 Cal.App.3d Furthermore, that the had instructed threats to be proved beyond a reasonable doubt in order to as factors in qualify aggravation. (People Robertson Cal.3d 655 P.2d 279].)

We agree “Danny” with defendant that evidence of the threat was inadmissible under the rule of Phillips Boyd. Respondent contends defendant’s statement constitutes solicitation his cousin Mar Lawrence Maclvor, tin to assist to murder Officer a violation of section 653f. plan But Officer testimony Nichols’s this threat does not bear out the concerning claim; the words used defendant are at best ambiguous equally merely of an inference that he was to Martin how he supportive relating have (defendant) get gun Danny.10 would back and “off” circumstances, “Danny” may 10Under other evidence of the well have been threat admissi 190.3, (a)-—even though ble as a “circumstance of the crime” under section factor the state making ment was made several weeks after commission of these offenses. Defendant was ref crimes, recovery handgun erence in his statement to of the and to the he used to commit these conclude, however, “Danny” threat that admission of evidence We Belmontes, 809.) at p. Cal.3d supra, (Cf. People was nonprejudicial. decided. The Boyd properly before were Phillips This case was tried well the circum- evidence in this case—in particular, admitted aggravating 190.3, From overwhelming. (a))—was simply factor (§ stances of the crime in of murdering defendant one incident jury guilty that evidence the found of un- execution-style shootings two others assaulting one and person victims, One month teenagers. two of whom were unresisting armed and and shot her twice viciously young a woman pistol-whipped later defendant $11 car. with her and her escape in the head in order to facilitate his the dwarfed in comparison of defendant’s threats was The evidence did the offenses. Nor charged and excessive violence seriousness He closing argument. the threats in his heavy on prosecutor place emphasis in- activity” of “other criminal they examples maintained that constituted in aggravation, and should thus be considered a threat of violence volving occasions to jury ignore he also cautioned the on three separate but alleged doubt that the they beyond unless first found a reasonable evidence the threats evidenced activity actually suggested criminal had occurred. He lives, clearly but and casual attitude toward the value of others’ callous established primarily his belief that this attitude was communicated and his courtroom demeanor. charged conduct in the offenses defendant’s met that defendant twice with Finally, jury guilt knew from the phase to his “Danny” threat communicating undercover Officer Maclvor after no evidence defendant custody. released from There was being cousin and be sheer make threat. On these facts it would good ever on his attempted the penal- that evidence of the threat affected for us to conclude speculation ty verdict. Admissibility

3. Guilt Phase Evidence. defense counsel for stipulating

Amicus curiae and defendant assail of trial. at the penalty phase to introduction of all the evidence guilt phase supra, merit. wholly (See People Phillips, We find the contention without 190.3, the crime relevant to 64; factor (a) Cal. 3d p. [circumstances § evi guilt phase determination].) argument the penalty receiving property or stolen burglaries dence of defendant’s involvement of de must likewise fail. Evidence was inadmissible at the penalty phase inextricably intertwined and sale of stolen was property fendant’s possession case, the any jury In guilt phase. case-in-chief at People’s proof More- weapon and thus these crimes. killing could link him to the murder of witness who over, any right through penalty complicity in crimes on as defendant denied insofar day “Danny” very he gun getting the back from on the phase, evidence of his concern about purposes. impeachment it to the undercover officer was relevant for sold criminal disregard any uncharged instructed to evidence specifically was beyond not a reasonable doubt or shown activity which was proved (b). under factor a threat or use of force violence involve Background Character and 4. Instructions on General Sympathy Evidence. jury

Defendant and amicus curiae that the misinstructed argue was on the role of character proper sympathy general background claim, in the In such we phase. evidence examine penalty reviewing arguments instructions and as a whole to determine whether informed of the evidence for its adequately scope mitigating proper 538, v. U.S. 546 (California (1987) (cone. consideration. Brown 479 opn. O’Connor, 943, 934, v. J.) 837]; see Eddings L.Ed.ld 107 S.Ct. Oklaho [93 104, 1, 10-11, 455 (1982) 869]; ma U.S. 113-115 102 S.Ct. L.Ed.2d [71 Ghent, 777; v. 43 at v. Brown 40 People supra, People Cal.3d p. 512, 536-537, 544, 637, Cal.3d fn. 17 P.2d v. 440]; 709 34 Easley (1983) Cal.3d & fn. 10 P.2d 671 haveWe undertaken such a review here and conclude that the was jury not misled its regarding to consider all of the evi- responsibilty mitigating in dence the case.

First, jury the was not instructed at the with “no- penalty the phase in language embodied No. 1.00. v. sympathy” CALJIC (Compare People Brown, 536-537, supra, Cal.3d at vacated sub nom. California pp. Brown, U.S. supra, the court high held that the giving [wherein the California standard anti-sympathy (CALJIC instruction No. at 1.00) is not penalty phase se].) unconstitutional per jury specifically instructed that: were previously you instructed must not be “[Y]ou for influenced pity swayed by defendant or for him. I sympathy you case, instruct in that this phase penalty phase, pity for the sympathy defendant would be for proper you considerations should you be find them to warranted the circumstances.”

Next, jury receive an although did instruction in the literal terms of (k) in factor this Easley, case pre-Easley (People supra, 858), Cal.3d our that, review of the arguments as whole reinforces our conclusion as instructed, the must jury have understood its to obligation consider and all of defendant’s weigh evidence. mitigating arguing jury

After to the “the that law is neutral” on happens what at penalty phase, the distinguished prosecutor penalty from the guilt phase difference, of trial thusly: “There’s a you and that difference that is previ- ously defendant, have been told that or pity passion for that sympathy, . . . This your cannot enter into deliberations. thing, penalty

sort of [the . . still cannot look at or sympathy passion is the .You phase] exception. You can’t change in terms of how it would facts. or for the victims prejudice that, towards the defendant. you but can consider or passion prejudice do say phase, pity instruction will that... this—the penalty [11][T]he you considerations if should for the defendant would be sympathy proper raises any- in the circumstances. find them to be warranted If defense case, heard, may any not have real evidence thing you may in this which far, defend- of so that there is a reason for towards this sympathy particular ant, something you weigh something you course that's that then of looking (Italics added.) use in the instructions on case.” they family could “consider Marvin’s as

Defense counsel told you they They have that have loved Marvin. wish They well. indicated live, confinement, him to life without imprisonment possibility albeit Marvin done some worthwhile They you have indicated to that has parole. earth. he is a human that he has being, acts while he has been on this That activities, others, that he has been in his things done worthwhile help “The indi- he is a of worth.” Defense counsel person explained: prosecutor they you cated that the instruction as do that can consider provides passion you Finally, if find that to be his appropriate.” and for the defendant pity the that defendant’s closing argument, prosecutor again argued proffered worthy mitigat- character and evidence was of minimal general background family “Marvin’s felt that he should live. You heard the testimo- ing weight: ny family say you ... I would a to that. The evidence heard the expect deeds, day other the defense Mr. Walker and his good thing from on I that there almost to mostly nothing that stands out that think about is was . . . have instructions. You’ll see how much value say. going You’re to [1f] that is.” he

Defendant directs us to the remarks which prosecutor’s closing mitigating stated: “The are two. And the possibility aggravating factors of However, context, added.) factors are all the rest.” read in we (Italics believe the was his view of the state of the prosecutor simply arguing evidence; youth and his lack of namely, prior that defendant’s relative any mitigating only worthy assignment convictions were the two factors of factor as weight. argument (k) Nor do we view the under prosecutor’s solely to the that evidence thereunder related to improperly suggesting jury (k) aggravating. (See People crimes—or that factor evidence could be In his Boyd (1985) 38 Cal.3d testimony of defendant’s discussed closing argument, prosecutor family friends; testimony and that he had done some including members favors, some, loaned odd and others rides money, jobs given them done evidence, evidence, to work. He never or lack of suggested any regard- character, and was ing general “aggravating.” defendant’s background Rather, weight to to such jury mitigating accord little simply urged he very thin.” say somebody, very, “if all about that is you evidence: that’s can whole, we conclude the arguments instructions and as Viewing of the full of its adequately here was informed nature responsibility and evidence. general background consider defendant’s character mitigating 5. Error. Davenport fac

During phase argument, prosecutor his reviewed penalty tors 190.3 and how in his view the evi (a) through (k) argued section factor, each if dence fit under He reviewed the circum applicable. general stances the crimes aggravating (a), as circumstances under factor and that evidence of the threats as a urged was admissible circumstance under He aggravation (b). felony factor observed that absence of prior convictions was a circumstance factor he mitigating (c). got under When factor or (d)—whether not the offense was committed while the defendant under influence of extreme mental or emotional disturbance—he is, course, no argued: “[tjhere evidence of that.” He went on character ize the manner in which defendant had shot his victims concluded: “emotional, extreme mental emotional disturbance on his no. part, least, cold Absolutely when he did those things. At that’s all the evidence we have.” Regarding (e)—whether factor not the a partici victim was in the pant defendant’s homicidal conduct or consented homicidal to the “Well, act—the prosecutor argued: again, that one is there because these are instructions for all He cases.” an of a defendant’s posited example potential culpability for the of an death commission of a accomplice during crime, suggested (e) had factor no to the case. application instant

When he reached (f)—whether factor or not offense committed under circumstances reasonably which the defendant be a believed to moral justification or extenuation for his in prosecutor conduct—the argued (f) his view factor had no under facts application these since defendant had victims, him, shot his all to unknown in an obvious to eliminate attempt each as to witness his He crimes. concluded: doesn’t “Simply this apply case and is in again, not his favor. It’s an aggravating (Italics circumstance.” added.) Similarly, in summarizing the under (extreme evidence factors (g) defect, duress or substantial of (h) (mental domination another); disease or the of intoxication); effects and (j) (whether or not was an defendant and relatively a accomplice played minor role in crimes), the prosecutor argued his viewpoint that those factors did not under the instant apply facts, but in each instance by labeling concluded them another “aggravating Finally, circumstance.” at one prosecutor argued: mitigating “The point a factors are possibility of And the are the rest.” aggravating two. all factors (Italics added.) constituted error.” v. prosecutor’s argument “Davenport (People 41 Cal.3d 247 In Davenport (1985) 861].) argue we held it that the mere Davenport improper prosecutor statutory of a factor was itself an circumstance. aggravating absence of evidence (I stated in that such d., 289-290.) Although Davenport we pp. rely in future be we did not on argument permitted” (ibid.), “should not in therein. point reversing penalty judgment Defendant and amicus curiae that the error urge Davenport requires Initially, We do not note that agree. reversal of the verdict. we penalty in any defendant is barred from misconduct complaining prosecutorial he regard object this because failed to prosecutor’s arguments, readily any because a admonition would have clarified confusion and simple Green, any 27; cured harm. 27 Cal.3d at see v. (People supra, p. People Ghent, Allen, 777; 43 Cal.3d at Cal.3d at supra, p. People supra, Moreover, years this was tried five before our p. 1284.) opinion case noted, and as in that its Davenport, language strongly our case indicates that only. rule is prospective evidence, to the our review of the instruc-

Turning question prejudice, tions, and as a whole convinces us that the reference arguments prosecutor’s to the absence of evidence mitigating (f), (g), (h), (j) under factors as not, circumstances” could have “aggravating reasonable possibility, jury’s (See aífected the verdict. v. Brown 46 Cal.3d penalty In P.2d each instance the misno- directly mer was in which the preceded argument urged the prosecutor to find each of the four factors to this case. Stated other- inapplicable wise, he just- that defendant could not claim “moral argued possibly ification” shootings (factor (f)), for the did not act out of extreme duress or the domination of another did not commit (factor (g)), the crimes due to (factor “relatively intoxication or mental illness (h)), and had not played minor role the crimes” Given the evidence and (factor (j)). guilt phase verdicts, reasonably it is not that the misled the possible “Davenport'’ error jury in their task weighing aggravating applicable mitigating Furthermore, circumstances. we view the prosecutor’s statement—“[t]he factors are a And are mitigating possibility aggravating two. factors all the rest”—as an exhortation that the evidence the conclusion supported that the circumstances the aggravating overwhelmingly outweighed mitigat- circumstances in this case. ing

Finally, we have observed that the of error” impact so-called “Davenport may fully be reduced where the understood the function and jury weighing the scope of its discretion at the responsibilities sentencing penalty Brown, 456; (See, Boyde v. 46 Cal.3d at v. phase. e.g., People supra, p. People 212, 263, 83, 46 4 (1988) (cone, Cal.3d fn. 758 P.2d [250 25] shown, As next there was no Brown prejudicial opn. Arguelles, J.).) dis. Brown, in this case. v. Cal.3d (People supra, 412) error Sentencing 6. Discretion. mandatory curiae that the sentenc

Defendant and amicus contend ground formula of is unconstitutional the that it with section 190.3 on ing “In jury. discretion from the constitutionally compelled sentencing draws 538-544, 512, v. [, Brown Cal.3d vacated on other supra, grounds ] [, 934], nom. v. Brown U.S. 538 L.Ed.2d supra, sub ] California however, no rejected very we that contention. Defendant us with presents reason to our Hendricks compelling holding.” (People reconsider 44 Cal.3d

Although statutory we found the scheme 190.3 of section constitutional Brown, statute, in “We that in acknowledge^] language death,’ the words ‘shall leave particular impose sentence of room for some Brown, confusion as to the jury’s role.” 40 Cal.3d (People supra, at p. 8.84.2, fn. Our 17.) concern in Brown was that former CALJIC No. which was drawn verbatim the statutory from language, might jury mislead the fully its comprehending sentencing discretion and in two responsibility ways: interrelated

“First, we pointed jury out that be confused about might the nature we weighing process. As observed: “weighing” word is a meta- ‘[T]he for a phor process which nature is precise incapable description. connotes a word mental balancing process, certainly but not one which calls for a mere mechanical counting factors on side of an each imaginary “scale,” or the arbitrary assignment of to “weights” any of them. Each is juror free to assign whatever moral or value he deems sympathetic appro- to each priate and all of various factors he is permitted consider.’ [Citation.]

“Second, we were concerned Brown that the unadorned instruction’s ‘the trier . . phrase, of fact . shall a sentence of death if impose con- [it] cludes that the aggravating outweigh circumstances the mitigating circum- (italics stances’ added), could mislead the to the it as ultimate question was called on to answer in determining Although which sentence impose. quoted phrase could be understood to a juror (i) to determine require ‘the whether aggravating circumstances circum- outweigh mitigating juror’s stances’ without regard to view as to the personal appropriate sentence, and then if (ii) impose sentence of death aggravation out- weighs mitigation juror even if the does not believe personally death is circumstances, all appropriate sentence under we concluded in Brown to, not, that the statute was not intended and should be interpreted ‘By directing jury fashion. Instead we stated: that the “shall” the impose if death it finds that factors penalty aggravating “outweigh” mitigating, any juror the statute should not be understood to to vote for the require unless, death of the he penalty completion weighing decides upon process, that death is the under all the appropriate circumstances. Thus the penalty jury, by weighing factors, the various determines simply under relevant ” evidence, is which in the case.’ penalty appropriate particular (People Allen, 1276-1277, 42 Cal.3d at italics in supra, pp. original.)

Our review of counsel’s reveals which would arguments nothing have jury confused the nature of the regarding proper weighing process, in our first concern Brown. The not prosecutor suggest did that the weigh merely was a “mechanical” In ing process “counting” or process. explain to the their ing jurors to the evidence under the responsibility weigh statuto factors, ry he reason that argued: gives jury the ulti “[T]he [the law] mate, or in job one the ultimate in this determination steps is because weren’t, they all cases are different. If you could do else. You something wouldn’t have subject to twelve to this. You could it people figure add up out, it it or It would be compute something. easy. But it’s not. There are different facts.” The then “If the prosecutor argued: defense raises anything in this . . . . any case real evidence . . that there is a reason for sympathy defendant, towards this particular then of course you that’s something . . .” weigh. (Italics He added.) explained that the set forth in procedure former CALJIC 8.84.2 No. was a weighing process: says, “The instruction look at the factors see outweighs which the other.” (Italics added.) noted, stated,

As at one in previously his point argument prosecutor factors are a mitigating possibility two. And the fac- aggravating “[t]he tors are all the rest.” in Read the context of the prosecutor’s argu- entire ment, we conclude this one statement could not and of itself have misled the jury into thinking weighing process was mere mechanical counting factors, with the death penalty to be if the circum- imposed aggravating numerically stances outnumbered the ones. mitigating Again, prosecu- i.e., tor case; his simply arguing only view that the evidence worthy any mitigating fit under factor weight (c) (the absence of prior felony convictions), (i) (defendant’s and factor relatively youthful age). Brown; to our

Turning jury second concern whether the understood the full of its discretion scope sentencing as the ultimate it was question being upon called to answer—which sentence to impose—our examination of the instructions arguments as a whole convinces us that the jury understood its obligation determine whether or not death was the appro- priate penalty this case.

First, the court several gave supplemental clarify instructions that helped noted, the jury’s role. As previously was instructed that: this “[I]n case, the and for defendant phase, pity sympathy the phase penalty you find be you would be considerations for should them to warrant proper Immediately after instruction in the of language ed the circumstances.” 8.84.2, jury the court the that their penalty former CALJIC No. instructed juror,” be the of “the of each opinion verdict must individual product duty you the to the evidence .... Each of that is of each consider “[i]t you (See (1988) the . . .” yourselves. must decide case for Odle Cal.3d 184].) Second, the his stressed that prosecutor throughout argument repeatedly it the law in essence was neutral the and that was the penalty phase, jury’s to He weigh argued: function the evidence under the relevant factors. ,” “the not fixed on the be . . . penalty law is what should and explained: your “You hear an says duty won’t instruction that it’s to that one assume case, other penalty your or the is It’s to assume this the proper. duty that fact, law calls certain verdict. In kind of You won’t. it neutral on the is subject. entirely It you you is to what the facts are that find to be up the case.” He reread former jurors CALJIC No. 8.84.2 for the them urged to “look at the factors and see which the He outweighs others.” reiterated that sympathy passion for were defendant considerations at proper he penalty phase, although forcefully argued his view that there was little mitigating evidence to justify harboring such emotions for this defend- ant.

Several times during argument, his the prosecutor expressed disagree- ment with defense counsel’s repeated characterization of the task as jury’s to being determine whether to “kill” Marvin Walker. The prosecutor urged the jury reject to defense counsel’s that a argument vote for the death do,” penalty would be the “easy” thing to “popular tantamount to a “cruel” of “vengeance” act for which jurors ultimately would suffer a guilty conscience. At one not point prosecutor argued: necessary “It’s for either you.” one us to this put personal sort blame on urges that may the prosecutor’s argument have lessened the jurors’ sense responsibility individually arrive at an penal- appropriate ty (See, determination. e.g., People Milner Cal.3d 255-256 713, 753 P.2d such Although argument isolation misled, might legitimate raise a that jury concern it could being not have had such here. misleading effect his Throughout argument prose- cutor sought impart to the of their gravity task and sentencing do, “I responsibilities: think toughest you you that will ever if thing vote case, for the penalty death is this and do follow instruction what says say easy instruction to do. To that it’s to vote for that death [the penalty] joke. it, is a funny there’s Although nothing extremely about it’s started, difficult. And we talked about that a great deal as this case and I don’t think there a easy. is there who thinks it’s . . . person up something believe, jury anyone No one on this answered the led questions, to [fl] myself, you counsel or that think it would be easy to vote for the death It is It penalty. tough. might you be the ever do. But it’s toughest thing called for here. It’s by called the law.” (Italics added.)11 for

Third, in to the responding argument, defense prosecutor’s counsel con- ceded to the that in jury one sense he was to seeking guilt “a impose trip” on them. He that he explained what had to do “was to hoped impress upon you a sense of responsibility, your in terms of personal responsibility actions and you you what must decide and how must decide it. Whatever you decision make your has to be Each one of us responsibility. has to decide the issue individually, your for to own as what should be the appro- Marvin, circumstance.

priate You can decide to kill and that’s what the death is all penalty about. It’s killing people.” jury: Counsel told the “You else, die, Nobody are the ones. If you decide that he’s to going you’re not [fl] done, going to be there at the time that obviously, you it’s but put machinery He operation.” jury the not to vote for the implored death case, penalty this them urging to consider that “Marvin is a person, human He them being.” urged to look back their to the upon they lives time years were 20 age when considering youth, defendant’s relative to well,” alone, “[cjonsider family his as and “not to act from vengeance but to show our mercy. our . . .” understanding, Counsel concluded his argu- ment with the statement: “Your decision will be final. It will be the ultimate word on Marvin. I only you would ask your mercy.” the

Although prosecutor and defense counsel plainly of one disapproved another’s choice of language, each was in his own words to seeking impress upon jurors solemnity of their individual sentencing In obligations. this fundamental sense the arguments were not in conflict. “This is not the 11 urge prosecutor’s Defendant and amicus curiae that the statement—“It’s called for may improperly jury believing automatically law”—itself have misled the into “the law” penalty called agree. for the death in this We case. do not Read in the context of the above- quoted passage, prosecutor merely urging jury says was to “do what the instruction to statement, prefaced do.” He you his with penalty comments vote for the death in this “if (Italics noted, added.) . . case. .” prosecutor argument And as had earlier in his told the jury: ,” “the law is penalty not fixed on what the . . explained: should be. “You won’t says your duty hear an instruction that it’s penalty proper. to assume that one or the other is case, your duty It’s to assume that this the law calls for a certain kind of verdict. You won’t. fact, subject. entirely In up you you it is neutral on the It is to what the facts are that find to be the case.” 264, People Myers (1987) Thus this is not a case like v. 43 250 Cal.3d 698], prosecutor argued jury merely P.2d wherein the to the that their function was one of “fact-finding,” they aggravating outweighed and that once mitigating found the circum- stances, your duty “it shall be penalty. the verdict of the death You don’t determine affix (Id., you.” that. p. added; The law has determined that for fn. italics see Hendricks, supra, 653-655.) pp. Cal.3d at . . . impression of case in was ‘left with the that its type which merely factors with responsibility weigh aggravating mitigating was penalties, out of the alternative regard to its view appropriateness “aggravation that it return of death if out a sentence “required” without, juror’s personal or even each conclu weighed mitigation” despite, evidence, a sentence of death was sion from the about whether appropriate (Allen, for the and the offender.’ supra, under the circumstances offense Odle, (People Cal.3d at italics Cal.3d at p. original.)” supra, p. 420.) whole, a are

Viewing they and instructions as we satisfied arguments discretion, jurors did not mislead the as to the nature of their sentencing full and that the jurors realized the ultimate rested sentencing responsibility Hendricks, them, with and them alone. v. 44 Cal.3d at (People supra, p. 655.)

7. Statutory Deletion Nonapplicable Factors.

Defendant and amicus curiae contend that the trial court erred in failing delete the or irrelevant nonapplicable statutory mitigating factors. (§ 190.3.) We this previously rejected argument. have v. (See People Miran da, Ghent, 44 at supra, 104-105; Cal.3d v. 43 pp. People Cal.3d at supra, pp. 776-777 death penalty law].) is from the apparent statutory [1977 “[A]s language, it is the jury to determine which of the listed factors are 190.3, or applicable ‘relevant’ to the case. particular (§ 6.)” (Miranda, par. 44 supra, 105.) Cal.3d p.

8. Age as an Aggravating Factor.

One of the factors to be considered “if penalty jury relevant” is 190.3, age the defendant at of the the time crime.” factor (§ (i).) “[t]he Defendant and amicus curiae contend that the committed mis prosecutor conduct arguing years defendant’s of 20 be age should considered an aggravating factor.

The prosecutor argued “certainly defendant is old enough to know bet ter,” ultimately but he concluded youth defendant’s relative could be con sidered a mitigating circumstance: “You take it or leave it. You can it give to him as a factor.” mitigating affirmatively He never that defend argued ant’s chronological age weighed favor death The penalty. argument was permissible. Lucky v. 45 (People (1988) Cal.3d 302 Ghent, 753 P.2d 1052]; v. 43 supra, Cal.3d at p. 775.) 9. Lack Remorse as an Aggravating Factor. amicus contend curiae that the prosecutor imper

missibly argued lack of remorse as an factor. The aggravating prosecutor

650 oifenses, argued that the circumstances of the testimony, defendant’s his courtroom demeanor together evidenced his total lack of remorse for his crimes.

Defendant’s failure to object or a curative request admonition has waived any claim of misconduct on with appeal regard argument. v. (People Green, 27; supra, Cal.3d at v. p. People Rodriguez, Cal.3d at supra, p. 788.) Although it is clear that the People may not evidence in present aggravation unless it is relevant to statutory aggravating circumstance Boyd, that, v. (People supra, Cal.3d at pp. 771-776), “we have held under law, death prior penalty presence or absence of remorse is a factor relevant jury’s to the penalty decision. (People Coleman [(1969)] Cal.2d [1159,] at p. concept remorse for offenses as a past factor mitigating sometimes less warranting Ghent, severe punishment condemnation is universal.” (People supra, 43 Cal.3d at p.771.)

Here, the prosecutor’s comments on defendant’s lack of remorse “did no more than suggest inapplicability of a mitigating factor.” v. (People Ghent, Rodriguez, 790; 42 Cal.3d at supra, v. p. People 43 Cal.3d supra, p. 771.) Even were we to read the prosecutor’s as argument affirmatively advancing circumstance, defendant’s lack of remorse as an our aggravating review of the record convinces us that such remarks could not have affected the penalty (Ghent, verdict. 43 supra, Cal.3d at pp. 775-776.) 10. Prosecutorial Misconduct.

Near the end of his closing argument, the prosecutor argued to the jury: “I think when he says him give life imprisonment, [defense counsel] diminishes, that it life, cheapens what’s It happened. Joe cheapens Vas quez’s life. But that’s not written in the law either. That’s just my personal opinion.” misconduct, Amicus curiae assigns the statement as but defend ant’s failure to object or an request admonition below precludes raising Green, claim for the first time on v. appeal. (People 27 supra, Cal.3d at event, In p. 27.) any the prosecutor stated he was merely expressing his “personal opinion,” jury was previously instructed that counsel’s state ments were neither evidence law, nor definitive of the pronouncements this one isolated statement could not possibly have changed verdict. 11. Intercase Review. Proportionality that urges we conduct “intercase” re proportionality

view—i.e., an examination of whether of the death in imposition his penalty case is disproportionate to the penalties on other imposed persons who have settled, however, committed similar offenses. It is that the Eighth Amend-

651 37, v. Harris 465 U.S. 50- ment comparison (Pulley no such requires 29, 40-43, repeatedly and we have so 871]), L.Ed.2d S.Ct. Belmontes, e.g., supra, the claim. recognized rejecting (See, Cal.3d at p. 818.) Disposition

III. entirety. affirmed in judgment is its J., Lucas, J., Panelli, J., Kaufman, J., Mosk, C. concurred. Arguelles, J., concurred in judgment only.

BROUSSARD, judgment I concur the affirmance of the as to guilt J. and in the sustaining findings. circumstance special however, dissent,

I from the affirmance of the as to judgment penalty. Our previous rendered before court opinion granted rehearing this reversed the penalty because certain have judgment jury may instructions caused the jury misunderstand what evidence could mitigation, it consider in and to misunderstand nature of its function I adhere selecting penalty. the view that the instruction on the in mitigation, factors applicable along factors, with the prosecutor’s argument on these reversal. The trial require court statutory instructed the on the factors in aggravation mitiga tion, but did explain any not that aspect defendant’s character and which defendant background can be used as a proffers basis rejecting death penalty. (See People Easely fn. (1983) Cal.3d 10 [196 P.2d Our original opinion found the prosecu tor had aggravated by nature of the misleading claiming instruction that only there were two factors in mitigation—defendant’s age, and his clean was, criminal record. The we implication that the character thought, background evidence was not relevant in mitigation. case, determined,

Since granted was rehearing this we have under the Court, guidance of the United States Supreme that the effect prejudicial this sort of instructional error must be viewed in the context the record as whole, with particular emphasis upon arguments which prosecutor 538, made to the v. jury. (California Brown 546 (1987) 479 U.S. L.Ed.2d [93 934, 943, O’Connor, 107 S.Ct. (cone. v. opn. J.); People Ghent 837] 739, 82, 43 (1987) Cal.3d 777-778 P.2d Cal.Rptr. 1250]; 739 see also [239 Miranda, 57, 594, v. People 44 103 (1987) Cal.3d 744 P.2d Cal.Rptr. [241 The majority claim that the prosecutor generally conceded the theoretical evidence, relevance of background defendant’s mitigating but dismissed the evidence contrary, as On the insignificant. the prosecutor’s discussion of defendant’s evidence intended background jury that persuade

evidence did not statutory fit into the scheme. He told the that it should consider the so-called evidence if sympathy only it was under applicable jury instruction on mitigating circumstances. He that the evi- emphasized dence of defendant’s background, though sympathetic, had nothing do with the case. He rebuked himself for failing to cross-examine the defense witnesses on whether they thought that defendant’s had background any- thing to do with the charged crimes. He told the jury that the law would not tell them how the character and background evidence fit into the statutory circumstances in aggravation and mitigation, that the instructions would not them. His help message was that the jury would have to figure itself, court, out for without guidance from the whether the evidence was relevant, that, view, but in the prosecutor’s it was irrelevant because it did not mitigate culpability circumstances, for the charged crimes. Under the I my adhere to view that the jury was not adequately informed that it could consider defendant’s mitigating background and character evidence as a basis for imposing a sentence less than death.

On rehearing, amicus curiae identified an additional error which rein- my forces conclusion that the penalty judgment cannot stand. As the major- find, ity the evidence of defendant’s threat against officer did police not show the commission of a any violation of penal statute. (See People 29, Phillips (1985) Cal.3d 423]; P.2d see also Boyd Cal.3d 776-778 782].) Unlike the majority, my it is view that the evidence of defendant’s courtroom threat against prosecutor likewise did not show commission of a crime. The majority posit the conduct could be a violation of Penal Code sections 69 or 71 (threatening an executive or public officer with intent to deter performance of his duties). “Although defendant voiced the voice, threat in a low he turned to face the deputy attorney district when he communicated it. The had deputy just completed conducting preliminary hearing answer, which defendant was held to had argued against his bail, release on and was able hear at least a portion threat. Given the murder faced, and assault charges which defendant it could reasonably be perceived that he had the ability to apparent carry out the threat. The evidence thus an supports inference that defendant intended to thwart or deter further prosecution of by his case threatening deputy district attorney, and each element requisite of a violation of section 69 was shown on these facts. (Maj. opn., supra, p. 639.) [Citation.]”

My reading the record discloses that defendant made the remark as he was escorted the bailiff to the cell. holding The room noisy, was defendant made the remark under his breath. The district deputy attorney who conducted the was 20 feet hearing away from defendant and did not threat, any hear only but heard the words “D.A.” I see no evidence that threat, he, defendant communicated any or that in prisoner custody and bailiff, ability any carry under the immediate control of a had apparent (See out threat. 40-41 any Hopkins (1983) Cal.App.3d any Nor do the crimes evidence of his charged provide ability carry custody— out a threat to while he was in “get” prosecutor rather, killers; evidence that he had to hired he himself there was no access all charged. the violence with which he was performed A rebuttal makes it clear prosecutor’s argument jury review how the threats were to death important his case for imposing penalty. The prosecutor urged jury to consider the threats as a factor in aggrava- tion under Penal (b) Code section 190.3 factor crimes of (uncharged evidence, violence). Without this admitted improperly would prosecutor have had to admit that the absence of evidence of prior crimes of violence was a factor in The mitigation. also made use of the prosecutor particular evidence in his rebuttal argument, when he tried to counter defense coun- sel’s for the plea punishment of life He imprisonment. argued that the threats showed that defendant would be violent in dangerous prison, they and that showed such lack of remorse or consideration for the value of life that defendant was entitled to no mercy.

I remain convinced that there is a serious risk that the jury misunder- stood one of the crucial tools it was to use in determining penalty, that it did not understand the applicability defendant’s mitigating background evidence. The case mitigation was truncated and the case in aggravation was enhanced only by not this but also misunderstanding, by the admission very damaging evidence that defendant made threats of violence against representatives of the state. urged to consider these threats and their implication future regarding conduct whether determining defendant should be incarcerated or executed. I would reverse the penalty judgment.

Appellant’s petition for a rehearing was denied March 1989.

Case Details

Case Name: People v. Walker

Court Name: California Supreme Court

Date Published: Dec 27, 1988

Citation: 765 P.2d 70

Docket Number: S004350. Crim. 21707

Court Abbreviation: Cal.